84 Albion Street, Leeds, West Yorkshire, LS1 6AD
Tel: 0113 2424099 fax: 01133506678
THIS AGREEMENT is made
(1) YOGINIS YOGA TRAINING Ltd a Limited Company registered in England and Wales 11894566. Operating from 21 Oakham Close, Bury, Lancashire BL8 1XJ ("Yoginis”); and
(A) In accordance with the Programme (defined below), Yoginis has agreed to grant the Approved Organisation a licence to permit Approved Trainers/Coaches to use the Course Materials, Trade Mark and access the Hive subject to the terms of this Agreement.
IT IS AGREED THAT
1.1 Unless the context otherwise requires, the defined terms set out in this Agreement shall have the following meanings given to them: “Approved Organisation" means an organisation entering into the licence agreement on behalf of their employees or the individual entering into the licence on their own behalf; “Approved Trainer/Coach" means an individual who has completed the Assessment and has obtained the Certificate to allow delivery of the Programme to Students;
“Approved Trainer’s Obligations” means the obligations detailed in the Particulars;
“Assessment” means the online assessment accessed at the Hive which must be completed by the Approved Trainer/Coach in order to receive the Certificate.
“Business” means the business of training individuals to deliver the Programme;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“CAA Code of Practice” means the Children’s Activities Association’s Code of Practice updated from time to time and which can be accessed at www.childrensactivitiesassociation.org/Member-Code-of- Practice;
“Certificate” means the Certificate issued to the Approved Trainer/Coach upon completion of the Assessment identifying the level of the training the Approved Trainer/Coach has completed and which will expire on the third anniversary of the Certificate being issued at which point and at the sole discretion of Yoginis: (1) the Approved Trainer/Coach may be required to complete another Assessment to be issued with a new Certificate; and (2) a further Training Fee may need to be paid;
“Confidential Information” means any information which is disclosed by one party to the other pursuant to, or in connection with, this Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential), or which otherwise comes into the hands of one of the parties in relation to the Business or the Programme, other than information which is already in the public domain (otherwise than as a result of a breach of any obligation of confidentiality). The Confidential Information of Yoginis includes the Course Materials supplied by Yoginis to the Approved Organisation and or Approved Trainer/Coach pursuant to this Agreement.
“Commencement Date” means the date detailed in the Particulars;
“Course Materials” means any materials owned and developed by Yoginis and used in the delivery of the Programme, including but not limited to: manuals, choreography, music, videos, techniques, logos and branding;
“Hive” means the e-learning resource web based platform accessed at www.theyoginishive.com;
“Licence Fee” means the fee described as such in the Particulars;
“Month” means a calendar month;
“Particulars” mean the particulars detailed in Schedule 1;
“Programme” means the yoga training programme created and owned by Yoginis which can be accessed at the Hive;
“Restricted Customer” means any education provider, firm, company or person who, during the one (1) Year prior to the date of termination of this agreement, was a client of Yoginis;
“Student” means an individual to which the Programme is being delivered;
“Term” means the term detailed in the Particulars;
“Termly Updates” means the updated Course Materials and other such content placed on the Hive by Yoginis which requires completion by the Approved Trainer/Coach in accordance with clause 7 of this Agreement;
“Trade Mark” means the trade mark (unregistered), detailed in Schedule 2;
“Training Fee” means the fee described as such in the Particulars;
“Year” means a period of twelve (12) calendar Months;
“Yoginis’ Obligations” means the obligations detailed in the Particulars.
1.2 In this Agreement (unless the context otherwise requires):
1.2.1 the words “including” and “include” and words of similar effect shall not be deemed to limit the general effect of the words which precede them;
1.2.2 reference to any Agreement, contract, document or deed shall be construed as a reference to it as varied, supplemented or novated;
1.2.3 words importing persons shall include firms, companies and bodies corporate and vice versa;
1.2.4 words importing the singular shall include the plural and vice versa;
1.2.5 words importing any one gender shall include either other gender;
1.2.6 construction of this Agreement shall ignore the headings, contents list and front sheet (all of which are for reference only);
1.2.7 references to a numbered clause, schedule, paragraph, or appendix are references to the clause, schedule, paragraph, or appendix of or to this Agreement so numbered;
1.2.8 the word “party” means any party to this Agreement. The term “parties” shall mean all parties to this Agreement; and
1.2.9 any reference to any legislative provision shall be deemed to include any subsequent reenactment or amending provision.
1.3. If there is any conflict between the terms and conditions of the main body of this Agreement and the terms and conditions comprised in any of the Schedules (including any Special Conditions), the terms and conditions in the main body of this Agreement shall prevail.
2.1 This Agreement shall commence on the Commencement Date and shall continue (unless terminated earlier in accordance with clause 11 of this Agreement) for the Term.
3. GRANT OF RIGHTS
3.1 Yoginis grants the Approved Organisation the non-exclusive right and licence to:
3.1.1 utilise and deliver the Programme to Students;
3.1.2 use the Course Materials and the Trade Mark; and
3.1.3 access the Hive. during the Term.
3.2 The Approved Organisation is permitted to allow an agreed number of Approved Trainers/Coaches to use the rights granted at 3.1 provided:
3.2.1 the Approved Organisation has paid the Training Fee and Licence Fee for each Approved Trainer/Coach;
3.2.1 each Approved Trainer/Coach has obtained a Certificate to permit the delivery of the Programme to Students; and
3.2.3 each Approved Trainer/Coach complies with the terms of this Agreement.
3.2 The Approved Organisation shall not sub-licence, assign or otherwise delegate any of the benefits conferred by this Agreement, without Yoginis’ prior written approval.
3.4 The Approved Organisation acknowledges and agrees:
3.4.1 the Hive shall only be accessed by an Approved Trainer/Coach;
3.4.2 not to reproduce, duplicate, copy sell, resell or exploit access to the Hive, use of the Hive, or any portion of the Hive, including, but not limited to the HTML, cascading style sheets or any visual design elements without the express permission from Yoginis;
3.4.3 not to modify, reverse engineer, adapt or otherwise tamper with the Hive or modify another website so as to falsely imply that it is associated with the Hive, Yoginis or any other software or service provided by Yoginis;
3.4.4 not to use the Hive in any manner which may infringe copyright, data protection or intellectual property rights or in any manner which is unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or in breach of this Agreement; and
3.4.5 that all ownership, licence, intellectual property and other rights and interests in and to the Hive shall remain solely with Yoginis.
4.1 In order to protect the Confidential Information, trade secrets and business connections of Yoginis the Approved Organisation covenants and shall procure the Approved Trainer/Coach covenants with Yoginis as follows:
4.1.1 not, except as otherwise provided for in this Agreement for a period of two (2) Years following its termination, trade in anyway utilising the Trade Marks or the Materials supplied to it pursuant to this Agreement;
4.1.2 not, during the Term or for two (2) Years after termination or expiry of this Agreement, solicit or endeavour to entice away from Yoginis the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with the Business;
4.1.3 not, during the Term or for two (2) Years after termination or expiry of this Agreement, be involved as agent, consultant, director, employee, owner, partner or shareholder with any business concern which is (or intends to be) in competition with the Business;
4.1.4 not, during the Term or for two (2) Years after termination of this Agreement, be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with the Business; and
4.1.5 not, at any time after termination of this Agreement, represent themselves as connected, in any way, with Yoginis.
4.2 The restrictions imposed on the Approved Trainers/Coaches by this clause 4 apply to it acting:
4.2.1 directly or indirectly; and
4.2.2 on its own behalf or on behalf of, or in conjunction with, any firm, company or person.
4.3 The restrictions in this clause 4 are intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective.
5. FEES AND PAYMENT
5.1 In consideration of the rights conferred pursuant to this Agreement, the Approved Organisation shall pay to Yoginis the Training Fee and Licence Fee by way of a method agreed in writing to the bank account specified by Yoginis from time to time.
5.2 In consideration for the payments made pursuant to clause 5.1, Yoginis shall supply those services which are contemplated by this Agreement.
5.3. The Approved Organisation shall pay any invoice issued by Yoginis within thirty (30) days of the date of the invoice, time for payment of which shall be of the essence.
5.4 Without prejudice to the other rights and remedies of Yoginis, any sums payable by the Approved Organisation and not paid within thirty (30) days of the due date for payment, shall bear interest on demand at 3% above the Bank of England base rate from the date payment becomes due until payment is made. The Approved Organisation shall pay all Yoginis’ costs, charges and expenses directly or indirectly incurred in obtaining or otherwise enforcing payment of the same.
5.5 In the event of any default in payment on the due date or breach of any of the terms and conditions of this Agreement, Yoginis may in addition to all its other remedies, suspend the supply of Yoginis’ Activities until such payment is made or the relevant breach rectified.
5.6 The Approved Organisation undertakes that it shall at all times strictly comply with all banking and payment procedures set out in this Agreement.
5.7 For the avoidance of doubt, any breach of clause 5.1 shall entitle Yoginis to terminate this Agreement, without any obligation to refund any part of the Licence Fee already paid.
5.8 Yoginis reserves the right to review the Licence Fee and vary the same at its sole discretion provided:
5.8.1 prior written notice is provided to the Approved Organisation; and
5.8.2 such written notice is provided no less than one (1) month prior to any variation.
6. GENERAL OBLIGATIONS
6.1 The Approved Organisation shall comply at all times with the obligations and requirements of the Course Materials and will procure the Approved Trainers/Coaches compliance with the Course Materials.
6.2 The Approved Organisation will ensure that both the Approved Organisation and the Approved Trainers/Coaches comply with the CAA Code of Practice (which is deemed to be incorporated into this Agreement) in so far as it applies to the Students to which Programme is being delivered.
6.3 In fulfilling its obligations under this Agreement, the Approved Organisation shall, so that the reputation of Yoginis and its goodwill in the Trade Marks are protected:
6.3.1 ensure the Approved Trainers/Coaches act as a prudent operators of the Programme, using reasonable skill and care and financial diligence;
6.3.2 use its best endeavours to protect and promote the goodwill in the Business;
6.3.3 not do anything that could or might in the sole opinion of the Yoginis bring the Business into disrepute or damage the reputation of the Business;
6.3.4 ensure the Approved Trainers/Coaches complete any training reasonably required by Yoginis from time to time; and
6.3.5 ensure that the Approved Trainer/Coach has obtained a Certificate to allow them to deliver the
Programme to Students.
6.3.6 Use its best endeavours to maintain the charging structure as per the external charging guidelines on ‘The Hive’.
7.1 The Approved Organisation shall ensure that the Approved Trainers/Coaches complete the Termly Updates which may be uploaded onto the Hive from time to time and up to a maximum of four (4) times per year.
7.3 This clause 7 shall be a material term of this Agreement, breach of which will permit the Approved Organisation to terminate this Agreement in accordance with clause 11.
8. INSURANCE AND SAFEGUARDING
8.1 The Approved Organisation shall throughout the term of this Agreement, insure with a reputable insurance company, against public liability, employee liability and all other risks contemplated by the Course Materials or required by law for the delivery of the Programme, for such minimum sums as are require by law, the CAA Code of Practice or the Course Materials from time to time.
8.2 DBS Checks determine whether the Approved Trainer/Coach and/or its staff working in the Approved Organisation have criminal records (“DBS Checks”). The Approved Organisation shall ensure that DBS Checks and certificates are obtained in respect of the Approved Trainer/Coach and all of its staff prior to commencing the Programme.
8.3 The Approved Organisation shall have full and on-going responsibility for maintaining appropriate and up to date processes and procedures to regulate the safeguarding (protection), welfare and health and safety of any children and in accordance with the CAA Code of Practice.
8.4 The Approved Organisation shall bear all costs and liabilities associated implementing its obligations pursuant to this clause 8.
9. TRADE MARKS
9.1 The Approved Organisation is authorised by Yoginis to use the Trade Mark solely for the operation of the Programme.
9.2 Under no circumstances shall the Approved Organisation or the Approved Trainer/Coach apply for registration as proprietor of any trade or service mark which mark is similar to any of the Trade Marks.
9.3 Under no circumstances shall the Approved Organisation or the Approved Trainer/Coach register any company name, which name is identical, similar to or otherwise incorporates the word ’Yoginis’ or the
9.4 The Approved Organisation undertakes not to do anything which shall prejudice or damage Yoginis’ goodwill in the Trade Mark or Yoginis’ reputation and shall ensure the same from the Approved Trainers/Coaches.
10.1 The Approved Organisation hereby acknowledges that all other information and knowledge relating to the Business and contained in the Course Materials is of a strictly confidential nature and accordingly, the Approved Organisation covenants that they will not and they will procure that no other person shall at any time without the prior written consent of Yoginis whether before or after termination of this Agreement divulge or use whether directly or indirectly for their own benefit or that of any other person, firm or
company any Confidential Information or such information or knowledge relating to Yoginis or this Agreement, which may be communicated to or otherwise acquired by the Approved Organisation or the Approved Trainers/Coaches.
11.1 Without prejudice to any other rights Yoginis may have under this Agreement (and subject to clause 11.4) at any time Yoginis shall have the right to terminate this Agreement on written notice to the Approved Organisation, with immediate effect, if the Approved Organisation or Approved Trainer/Coach:
11.1.1 breaches any of the terms and conditions and such breach is not capable or remedy;
11.1.2 breaches any of the terms and conditions and if such breach is remediable, fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;
11.1.3 does anything or acts in anyway which adversely impacts on the brand or reputation of Yoginis;
11.1.4 (being a person) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;
11.1.5 (being a body corporate) shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors;
11.1.6 suspends or ceases or threatens to suspend or cease, to carry on all or a substantial part of its trade or business;
11.1.7 commits theft or fails to provide reasonable care for children under supervision.
11.2 Following expiry of the Initial Term, either party may terminate this Agreement by providing the other not less than 3 months’ written notice.
11.3 Termination of this Agreement (however occasioned) shall not affect any accrued rights or liabilities of either party.
11.4 The rights of termination provided for in clause 11.1 shall not apply to the extent that the Approved Organisation is able to demonstrate that the circumstances leading to such termination arose as a resultof:
11.4.1 the illness or injury of the Approved Trainer; or
11.4.2 due to circumstances beyond the reasonable control of the Approved Organisation or Approved
Trainer/Coach, including any acts of god or any events of ‘Force Majeure’, in which case, the Approved Organisation shall be afforded three (3) months to remedy the breach, after which, should the breach remain unremedied, Yoginis shall have the right to terminate this Agreement with immediate effect.
12. LIMITATION OF LIABILITY
12.1 The following provisions set out the entire financial liability of Yoginis (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Approved Organisation in respect of:
12.1.1 any breach of these terms and conditions;
12.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement.
12.2 Nothing in this Agreement excludes or limits the liability of Yoginis:
12.2.1 for death or personal injury caused by Yoginis’ negligence;
12.2.2 for any matter which it would be illegal for Yoginis to exclude or attempt to exclude its liability; or
12.2.3 for fraud or fraudulent misrepresentation.
12.3 Subject to clauses 12.1 and 12.2:
12.3.1 Yoginis shall not be liable to the Approved Organisation, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with this Agreement; and
12.3.2 Yoginis' total liability to the Approved Organisation in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the fees paid by the Approved Organisation in the first Year period preceding the date such losses first arose.
13.1 The Approved Organisation shall be liable for and will indemnify Yoginis against any and all direct liability, direct loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by Yoginis arising out of any dispute or contractual, tortious or other claims or proceedings brought against Yoginis as a result of the Approved Trainer/Coach’s operation of the Programme, arising as a result of any negligence on the part of the Approved Trainer/Coach or any breach by the Approved Organisation of its obligations and/or warranties as set out in this Agreement.
14.1 Any notice given by one party to the other under this Agreement must be in writing and may be delivered personally or by pre-paid first class post and in the case of post will be deemed to have been given two (2) clear working days after the date of posting. Notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in writing by one party to the other for the purpose of receiving notices after the date of this Agreement. Each party may specify by notice to the other particular individual or office holder to whom any notices served on it are to be addressed, in which case a notice shall not be validly given unless so addressed.
15. FURTHER ASSURANCE
15.1 Either party shall at the request and cost of the other do or procure the doing of all such further acts and execute or procure the execution (as a deed or otherwise) of all such documents as may from time to time be necessary to give full effect to this Agreement.
16.1 If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
16.2 If any provision of this Agreement is so found to be invalid or unenforceable but would cease to be invalid or unenforceable if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid and enforceable.
17. THIRD PARTIES
17.1 A person who is not party to this Agreement shall have no rights under the Contracts (Rights of Third parties) Act 1999 to enforce any term of this Agreement. This Clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
18.1 Each party shall bear its own costs and expenses incurred in relation to the negotiation, preparation, execution and implementation of this Agreement and all other documents to be completed in accordance with its provisions.
19.1 Nothing in this Agreement is intended to create a partnership or joint venture or legal relationship of any kind that would impose liability upon one party for the act or failure to act or any omission of the other party between the parties, or to authorise either party to act as agent for the other. Save where expressly stated in the Agreement, neither party shall have authority to make representations, act in the name or on behalf of or otherwise to bind the other.
20. WAIVER AND CUMULATIVE REMEDIES
20.1 The rights and remedies provided by this Agreement may be waived only in writing and specifically, and any failure to exercising a right or any delay in exercising a right or remedy by either party shall not constitute a waiver of that right or remedy or of any other rights or remedies. A waiver of any breach of any of the terms of this Agreement or of a default under this Agreement shall not constitute a waiver of any other breach or default and shall not affect the other terms of this Agreement.
20.2 The rights and remedies provided by this Agreement are cumulative and (unless otherwise provided in this Agreement) are not exclusive of any rights or remedies provided at law or in equity.
21. ENTIRE AGREEMENT
21.1 This Agreement, together with the documents referred to in it, constitutes the entire Agreement and understanding between the parties in respect of the matters dealt with in it and supersedes any previous Agreement between the parties relating to such matters.
21.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) other that as expressly set out in this Agreement. The only remedy available to either party in respect of any such statement, representation, warranty or understanding shall be for breach of contract under the terms of this Agreement.
21.3 Nothing in this Agreement shall operate to exclude any liability for fraud.
22. GOVERNING LAW AND JURISDICTION
22.1 This Agreement and any matter arising from or in connection with it shall be governed by and construed in accordance with English law.
22.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the English Courts over any claim or matter arising from or in connection with this Agreement.
Commencement Date The date of this agreement. Term A term of twelve (12) months from the Commencement Date (the “Initial Term”), renewing automatically on expiry unless terminated by either party byproviding the other not less than three (3) months written notice. Licence Fee £72 plus VAT per year per Approved Trainer/Coach. Training fee A one off payment of £99 plus VAT per Approved Trainer/Coach to be paid by the Approved Organisation prior to the commencement of the training. Payment Terms The Licence Fee for the Initial Term will become due and payable on the Commencement Date. After the Initial Term the Licence Fee shall be payable by the Approved Organisation in full or in twelve (12) equal monthly instalments by arrangement, commencing on the first Business Day of each Month and continuing for the duration of this Agreement.
Yoginis’ Obligations In addition to those obligations detailed in this Agreement, from the Commencement Date, Yoginis will provide or make available to the Approved Organisation the following:
(a) access the Hive;
(b) the Programme, Course Materials, Assessments, Termly Updates by way of the Hive; and
(c) the Certificate to be provided upon completion of the Assessment. Approved Organisation’s Obligations In addition to those obligations detailed in the Course Materials, from the Commencement Date, the Approved Trainer/Coach shall be responsible for the following:
(a) the upkeep of Yoginis’ brand and image in a positive and credible manner;
(b) obtaining DBS (as defined) checks for all appropriate representative (including but not limited to the Approved Trainers/Coaches working directly with children;
(c) having appropriate policies in place to ensure the safety and security of children attending activities;
(d) ensuring that all members of staff including the Approved Trainers/Coaches are working in accordance with the child protection and safeguarding policies in accordance with CAA Code of Practice and the law; and
(e) ensuring that satisfactory first aid procedures are adopted in accordance with the law and the CAA Code of Practice.
The following unregistered trade marks ‘Yoginis Yoga Training Ltd’ – [Approved Coach logo].